LOBBYING ACT: NON-PARTY CAMPAIGNING

Transcription

1 19 SEPTEMBER 2014 LOBBYING ACT: NON-PARTY CAMPAIGNING Introduction The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill (commonly referred to as either the Lobbying Bill or the Gagging Bill) was introduced in the House of Commons on 17 July 2013 and received Royal Assent on 30 January This briefing is focused on Part Two of the Act, which introduced a number of changes to the rules on campaigning spending in the run up to elections by non-party campaigners, such as trade unions. Trade unions wishing to spend above the new limits on regulated campaign activities in the lead up to elections must register with the Electoral Commission and comply with these new rules on spending and donations. The new rules apply to all non-party campaigners from 19 September Background The coalition government s stated aim for Part Two of the Lobbying Act was to increase transparency of spending by non-political parties by requiring non-party campaigners (known as third parties in electoral legislation) to record and publish more information about their spending, donations and accounts. The Act changed when the rules on non-party campaigning apply, the registration thresholds, what spending is covered by the rules, how much campaigners can spend on regulated campaigning activities and what non-party campaigners need to report to the Electoral Commission. The changes were much-debated during the passage of the Bill; with charities, other voluntary sector organisations and trade unions concerned that Bill would restrict ordinary (non-party political) campaigning activities in the lead up to elections. A central concern was the Government s proposed definition of controlled expenditure which, it was argued, would make any activity that was likely to make people think favourably of parties or candidates who supported a particular issue fall under the scope of the Bill. When the Bill was first introduced it said that any expenditure which would reasonably be regarded as otherwise enhancing the standing of parties or candidates would be subject to the new rules on spending. Various organisations, including trade unions, argued this was too wide a definition; they also argued it would prevent criticism of the current coalition Government s policies and stifle political debate in the UK in the lead up to elections. The government was forced to make some amendments during the passage of the Bill, most notably removing otherwise enhancing the standing from the Bill. Instead only activities that can reasonably be regarded as intended to promote or procure electoral success of a party or candidate, will be subject to regulation. However the Act still imposes significant limits on the activities of trade unions, charities and campaign groups in the lead up to elections. Registered non-party campaigners will have 1

2 lower spending limits than they did in the lead up to the 2010 General Election, but such limits will also have to account for a wider range of activities. Registering as a non-party campaigner The following groups will need to register with the Electoral Commission as a non-party campaigner if they wish to spend more than 20,000 in England or 10,000 in Scotland, Wales or Northern Ireland on regulated campaign activities during the regulation period: An individual registered on a UK electoral register or resident in the UK; A registered UK political party; A UK registered company which is incorporated in the EU and carries out business in the UK; A UK registered trade union A UK registered Limited Liability partnership which carries out business in the UK; A UK registered friendly industrial or provident or building society; A UK based unincorporated association that carries out the majority of its business or other activities in the UK A body incorporated by Royal Charter; A charitable incorporated organisation; and A Scottish partnership which carries out business in the UK. There is no need to register with the Electoral Commission if a non-party campaigner is: Not spending money on regulated campaigning activity, or: Spending less than 20,000 in England or 10,000 in each of Scotland, Wales and Northern Ireland during a regulated period, or; Campaigning outside a regulated period. Regulation period The regulation period for the upcoming General Election began on 19 September 2014 and ends on polling day, 7 May This is the period within which campaign spending limits and rules apply. Thereafter the regulated period will be 12 months before general elections and four months before elections to the EU Parliament or the devolved governments of Wales, Scotland and Northern Ireland. Guidance on what constitutes regulated campaign activity The new rules cover spending on a wider range of campaigning activities than in the past, including the following: Election material made available to the members of the public (such as leaflets, advertisements and websites); Canvassing or market research seeking views or information from members of the public (this may include activities such as encouraging people to vote a certain way using phone banks); Press conferences or media events organized by the registered non-party campaigner; Transport in connection with publicising a campaign; 2

3 Public rallies or other public events. 1 These campaign activities will be deemed regulated campaign activity if they meet both the purpose test and the public test. Purpose test Campaigning activities meet the purpose test if they can, reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties of categories of candidates who support or do not support particular policies or issues. The purpose test takes into account factors such as: tone, context and timing, call to action and how a reasonable personal would see the activity of the non-party campaigner. Campaigning activity can meet the purpose test even if it does not name a particular political party or candidate and if the intention is to achieve something else, such as raising awareness of an issue. Public test Campaigning activities will meet the public test if they are aimed at, seen or heard by or involve the public. This appears straightforward; however, the Electoral Commission s definitions of the public and committed supporters have been important for certain non-party campaigners. The Electoral Commission says that a non-party campaigner s members and committed supporters are not considered members of the public under the public test. It says the exact nature of committed supporters will vary within organisations but may include those who: give regular donations by direct debit; have an annual subscription; or are actively involved in the registered non-party campaigner s organisation. However, people that a non-party campaigner regularly communicates with (for example, through a free newsletter) are considered members of the public unless they are also members or committed supporters. This is why some groups, such as the anti-fascist campaigning group HOPE not Hate, recently created a 1 supporter category to enable them to continue to communicate with supporters during the regulated period without such communication counting as an election expense. Campaigning for or against government policy During the passage of the Lobbying Bill there was concern that the new rules would prevent legitimate criticism of government policies during the regulated period. The Electoral Commission guidance therefore states that, provided the campaign activity is clearly aimed at supporting or opposing the proposed legislation of the government of the day, and not the proposed policies that the party or parties in government will take to the election, then such campaign activity will generally not be regulated. However, it does also state that if the campaign could reasonably be regarded as intended to influence voters at the election as well as supporting or opposing legislation, then it would be considered regulated campaign activity. 1 More detailed information and examples are available in the Electoral Commission guidance: data/assets/pdf_file/0003/165963/to-activities-npc.pdf 3

4 Planning and budgeting costs Costs such as those of staff involved in budgeting or planning will only count if they are a part of a specific campaign activity which is regulated. If some planning or budgeting is a part of a regulated activity, for example the planning of a public event, then that could count as regulated spending because of the staff costs involved; otherwise it would not be regulated. Campaign spending that will not be regulated The Electoral Commission guidance states that the following types of spending related to campaign activity will not be regulated: material that you send to your members or committed supporters; volunteer time, including time spent by staff that they are not paid for; people s travel or personal expenses linked to the campaign if you do not reimburse them; annual conferences; public processions or protest meetings in Northern Ireland; translations to or from Welsh into English or vice versa; providing security at a public rally or public event; anything, other than advertisements, in a newspaper or on a licensed broadcast channel; reasonable expenses that are incurred in relation to an individual s disability; anything that counts as campaign spending by a registered political party or a candidate unless it is caught by the rules on targeted spending. Non-party campaigner annual conferences Generally annual conferences of non-party campaigners will not be regulated. The Electoral Commission guidance states that conference stands, fringe meetings and receptions at party conferences if they involve lobbying or influencing politicians and candidates will not be regulated. However the Electoral Commission also urges non-party campaigners to think carefully and to follow the purpose test and the public test to assess whether spending on activities outside the perimeter of an annual conference would fall within the rules and be regulated. The guidance notes that if members of the public attend fringe events or receptions at party conferences, then non-party campaigners will need to consider whether what is being done at the meeting will meet the purpose test. Likewise if the media is invited to attend a fringe event or reception, it may become a media event that is regulated by the Electoral Commission if it meets the purpose test. If any of the non-party campaigner s activities are not lobbying or influencing on party policy issues, then they will need to consider whether they meet the purpose test. Campaign spending limits for UK Parliamentary General Elections The amount non-party campaigners can spend at UK Parliamentary General Elections during the regulated period has been cut by around to 60% to: 319,800 in England 55,400 in Scotland 44,000 in Wales; and 4

5 30,800 in Northern Ireland. However, because of the way attribution rules apply, the overall UK-wide limit is 390,000 and not 450,000 which is the total sum of the spending limits in the four parts of the UK. This means that if a registered non-party campaigner runs a campaign across the whole of the UK, the overall spending limit will be capped at 390,000. Up to 450,000 can only be spent if there are separate campaigns run in each of the four parts of the UK. 2 The Act also introduced new spending limits for focused constituency spending for UK Parliamentary General Elections, as well as new limits for targeted spending in support of a particular political party. These are detailed in the following table: Table 1: Non-party campaigner spending limits for a UK General Election Constituency spending limits Under these new constituency spending limits, spending on a UK-wide campaign must be attributed equally to each of the UK s 650 constituencies. If campaigning is only being undertaken in one part of the UK, spending must be attributed equally to each constituency in that part. The spending attributed to each constituency counts towards the 9,750 limit for each constituency. 2 More information about attributing spending is available at: data/assets/pdf_file/0010/169471/sp-manage-spending-npc-ukpge.pdf 5

6 This means non-party campaigners must make sure they do not spend more than 9,750 in any one constituency on any, or a combination of: focused constituency campaigning in a particular constituency or constituencies; UK-wide campaigning where spending is attributed equally to all 650 parliamentary constituencies; a campaign in a part or parts of the UK, where spending is attributed equally to the constituencies in that part, or those parts; The Government did not define in law what activities count as focused constituency campaigning, but rather left it to Electoral Commission guidance. That guidance states that campaigners should make, an honest and reasonable assessment based on the facts as to whether the effects of the spending on the regulated campaigning activity will be wholly or substantially confined to a particular constituency or constituencies, and that the following should also be considered: whether you intend to influence people who vote in a particular constituency or constituencies, and; whether, regardless of your intentions, the spending might affect only a particular constituency or constituencies. The guidance says activity is very likely to be focused constituency campaigning if regulated campaign spending is incurred to influence the voting choice of people in a particular constituency or constituencies by: sending election material by direct mail where voters have been selected by postcode; canvassing using phone banks where you have selected voters by postcode; door to door canvassing where you have selected households in a particular constituency or constituencies but not others. 3 Targeted spending promoting one political party If a registered non-party campaigner in England wants to spend over 32,000 on targeted spending promoting one political party, then they must seek authorisation from the political party and the spending will count towards the spending limits of both campaigners. However the registered non-party campaigner must make sure they do not exceed the national and constituency spending limits. The limits for other countries during the regulated period ahead of a UK parliamentary General Election are notably lower: 3,500 in Scotland, 2,400 in Wales and 1,100 in Northern Ireland. Electoral Commission guidance states that in almost all cases spending on regulated campaign activity will only count as targeted spending if a political party or any of its candidates are named in a way that can be regarded as intended to influence voters to vote for only that political party. The targeted spending rules only apply to money, goods, property, and services that registered non-party campaigners use as part of a campaign. The targeted spending rules do not apply in respect of any donations non-party campaigners may choose to make to a political party. 3 More detailed examples can be found in the Electoral Commission guidance: data/assets/pdf_file/0006/165966/to-constituency-npc.pdf 6

7 Reporting requirements Under the Act, registered non-party campaigners must also comply with the following spending and donation controls and reporting requirements: Have a system in place for authorising spending on regulated campaigning activity; Keep invoices and receipts for amounts over 200; Report to the Electoral Commission after the election any spending on regulated campaign activity if over the national thresholds; Check that any donations over 500 can be accepted and record them; Comply with the reporting for any donations received for spending on regulated campaigning activity; and During a UK Parliamentary General Election regulated period certain donations before and after the election need to be reported. 4 Electoral Commission guidance also states that if a registered non-party campaigner spends over 250,000 during the regulated period, they will have to include an auditor s report. As a general guide, if spending is over 250,000 then the report to the Electoral Commission should be made within 6 months of the election; however, if spending is below 250,000 then it should be reported within 3 months. Future review of the law The Lobbying Act allows for a review of non-party campaigning after the 2015 General Election to be undertaken and reported to Parliament within 18 months. However, in April 2014 the Labour Party announced it would repeal the Lobbying Act if it was elected at the next General Election and would consult on what laws should be introduced to replace it. 4 More detailed information about reporting requirements is available at : data/assets/pdf_file/0010/169471/sp-manage-spending-npc-ukpge.pdf 7